October 13, 2019
Is it Contempt of Court?
In my March 2019 Cheshire Citizen column I explained that a person who violates an unambiguous court order can be found to be in contempt of court. I also discussed defenses that are available, including that the violation wasn’t willful. Here is an actual case where a court applied those principles.
Bob and Jane were divorced in 2010. As is typical, the court approved their settlement agreement and it became a court order. Under that order, Bob was required to pay child support of $260 per week for the couple’s three children. That was based on Bob’s anticipated annual salary of $205,000. For reasons not relevant to this column, that was a downward deviation from the $451 called for in the Child Support Guidelines.
Bob stopped paying child support when he lost his job in 2012. When he got another, lower paying job, rather than resuming the $260 weekly, he paid less based on his own recalculations from the Guidelines and applying his own deviation criteria. While Bob filed a motion with the court seeking a reduction in his child support in 2012, he didn’t follow through with a court proceeding until years later when Jane brought him back to court on her motion for contempt against Bob for not honoring the 2010 order.
Bob argued that the violation was not willful. He felt he had a right to recalculate the support amount whenever his salary was below $205,000 and had even relied on a financial advisor’s calculations of the Guideline amounts. The result of that: Bob was found to be in contempt. The court order was unambiguous – $260 per week – period. Reliance on a financial advisor for a recalculation when no recalculation is allowed isn’t a defense. Bob was ordered to immediately pay $35,000 of the past due support amount $59,254 and the rest in $500 monthly installments as well as $50,000 toward Jane’s counsel fees. Bob’s request to reduce the child support amount was rejected and instead the court ordered $539 per week, an upward deviation!
The first lesson is, as the court stated: “An order of the court must be obeyed until it has been modified or successfully challenged.” Simply filing a motion doesn’t change the order. The second lesson is that if Bob had followed through on a motion for modification in 2012 rather than doing self-help, chances are good that he would have received a lower order to reflect his job loss and new lower paying job, preserved his downward deviation, and avoided the legal fee award.
This article first appeared in the October 10, 2019 edition of the Cheshire Citizen.
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